Two days after Hamas’s murderous attack on Israel, the European Union, one of the largest donors to the Palestinian Authority and Gaza, announced that it would immediately suspend its substantial funding to the PA. Yet, it took the EU less than 24 hours to reverse this decision and announce that the funding will be reviewed but not suspended.
Criticizing the original announcement made by his Hungarian colleague, EU foreign policy chief Josep Borrell sought to distinguish between Hamas and the general population of the Palestinian people. At first glance, Borrell’s argument makes a lot of sense: The Gaza Strip is home to hundreds and thousands of children who need food and education, and they certainly had no part in the planning and execution of the 7/10 attack on Israel.
Similarly, Gazan women strive for equality and empowerment under Hamas’s misogynistic regime and one can’t, in good conscience, accuse them of being complicit in the attack. The same can be said for the disabled, elderly, and other members of the general population who likely depend on this aid.
However, while this argument is appealing and holds true in most situations, it is not valid in the case of Hamas-ruled Gaza. Gaza enjoys substantial international funding while harboring, under the Western radar, a regime that President Joe Biden rightly paralleled with the notorious ISIS.
Also, contrary to popular belief, most of this funding isn’t coming from Iran.
A 2021 story by the AP news agency reported that the United Nations, via various agencies, funded Hamas-ruled Gaza with $4.5 billion between 2014 and 2020. Qatar transferred to Gaza a total of $1.3 billion from 2012-2020, while European states – mostly Germany – funded multiple infrastructure projects for Hamas-ruled Gaza with €70 million in 2021 alone (apart from the EU’s annual funding of €691 million which Mr. Borrell recently defended).
The PA – allegedly Hamas’s bitter political rival – pledged a sum of $1.7 billion for Hamas-ruled Gaza in 2021 and the Egyptian government promised to support it with $500 million in the same year, although it remains uncertain how much of these funds were actually transferred. Even the United States pitched in with $5.5 million.
Needless to say, it would have been unfathomable if the same well-intentioned generous donors would agree to fund civil projects for the Islamic State (ISIS) that – much the same as Hamas-led Gaza – functioned as quasi-state entity, ruling a vast territory from 2014 until its last strongholds were defeated in 2017 (Iraq) and 2019 (Syria).
Yet with the “new-ISIS,” Hamas-ruled Gaza, EU demonstrates a surprising tolerance and willingness to distinguish between regime and citizens, merely two days after this same regime slaughtered, beheaded, raped, and abducted not only over a thousand Israelis but dozens of EU, American citizens and citizens of other nationalities.
Hamas-Gaza’s success in fooling Israel’s military intelligence is shadowed by its much more impressive legalistic scheme that has so far succeeded in misleading the world concerning its actual legal status.
For nearly two decades, Hamas-Gaza succeeded in fooling not only countries and international organizations such as the UN and EU, but also international law scholars who struggle to define the precise legal status of Hamas-ruled Gaza and categorize it using the common categories of international law.
Hamas wants the power of a state, without the responsibilities
I ARGUED in a 2020 article that Hamas purposely and knowingly eludes receiving or even claiming the legal status of a state, opting instead to remain in a gray zone in which no one can precisely define this entity or its legal status. Hamas prefers this blurry status, even though it operates as a fully functioning state apparatus in Gaza.
Hamas doesn’t just have a sophisticated and well-equipped paramilitary wing whose men – together with Gazan civilian culprits – perpetrated 7/10 atrocities in Israel, but it also has a police force, civil service, international relations, and of course a well-defined territory. This sophisticated strategy allows Hamas-Gaza to benefit from both worlds: It enjoys the advantages of sovereign rule while simultaneously avoiding the heavy responsibilities that states incur under international law.
Three years ago, in my 2020 article I referred to the “Marches of Return” in which Hamas sent its activists and sympathizers to confront IDF soldiers at the border fence. During these “marches” – which were, as a matter of fact, violent gatherings in which Hamas people threw rocks and Molotov cocktails at Israeli soldiers and in several cases even fired live ammunition – Israel found it hard to hold any tangible, legally-defined state entity responsible for the violent riots taking place at its border, which included attempts to breach the fence and penetrate Israel’s sovereign territory.
As a result, Israel had to deal with rioters on an individual basis (some were dispersed by crowd control measures, others were arrested and still others, armed and dangerous, were shot in self-defense by Israeli officers).
To demonstrate the absurdity of this situation, imagine a sovereign country like Spain were to send hundreds of its citizens to the Spanish-Portuguese border to throw stones, Molotov cocktails and even shoot Portuguese policemen and soldiers, with Portugal having no valid recourse to deal with these serious breaches of its sovereignty at the state level, having instead to deal with the rioters one by one. It is clear, however, that under current international law, in the above hypothetical situation, Portugal would also be able to respond with military force, sending its army to fight the Spanish army – regardless of whether Spanish soldiers participated in the attack or not – and retaliate by measures that would deter Spain as a state and force it to apply appropriate measures to ensure its civilians would not breach the sovereignty of a neighboring country again.
In the wake of 7/10 atrocities, Israel has declared war on Hamas, in the full meaning of this term under international law – and rightly so. However, notwithstanding Western countries’ solidarity and support of Israel’s right to self-defense, their stand has fallen short by not taking the necessary further step and imposing on Hamas-Gaza full legal responsibility as on any other state.
Such formal recognition of the exisiting situation would require the complete cessation of the transfer of funds to this quasi-state entity and its so-called “civilian” organizations.
Just as it would have been inconceivable that the United States, France or Spain would fund charities inside the Islamic State back in 2015, it should be similarly considered unthinkable and unlawful for them to fund organizations in 2023 New ISIS.
The writer is a lecturer at the College of Management Law Faculty.
